Tmt.Devi v. State by Inspector of Police, H-6, Dr.Radhakrishnan Nagar Police Station, Chennai-600 021 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04-08-2009CORAMTHE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE RAJA ELANGOHCP No.994 of 2008andM.P.Nos.1,2 & 3 of 2008 & M.P.No.1 of 2009Tmt.Devi ... Petitionervs1.State by Inspector of Police, H-6,Dr.Radhakrishnan Nagar Police Station, Chennai-600 021,2.The Commissioner of Police, Chennai City, Egmore, Chennai. ... RespondentsHabeas corpus petition filed under Article 226 of theConstitution of India praying to issue a writ of habeas corpusdirecting the respondents to produce her husband Suresh @ BabaSuresh, S/o.Pazhani, aged about 27 years before this Court and sethim at liberty. For Petitioner : Mr.S.Swamidoss Manokaran For Respondents : Mr.V.R.Balasubramanian Additional Public Prosecutor, ORDERThis petition has been filed on 10.07.2008 praying for productionof petitioner's husband Suresh @ Baba Suresh from Central Prison,Puzhal,Chennai. 2. A perusal of the petition and the counter filed by therespondents reveals the fact that the husband of the petitionerSuresh @ Baba Suresh is involved in number of cases, which are asfollows:- https://hcservices.ecourts.gov.in/hcservices/

1.PENDING TRIAL CASESSl.NoPolice StationCr.No. Under Section1.H-6 Police Station 18/20014(1) aa TNP ActPT2.H-6 Police Station 894/20014(1-A) TNP ActPT3.H-6 Police Station1018/2001336,427,353,506(ii)IPCPT 4.H-6 Police Station 95/2003147,148,341,427,302,506(ii)IPCPT 5.H-4 Police Station332/2004341,323,384 & 506(ii) IPCPT6.H-6 Police Station955/2004341,324 & 506(ii) IPCPT7.H-6 Police Station839/2004336,427,392,307 & 506(ii) IPCPT8.H-6 Police Station552/2005341,384,506(ii) IPCPT9.H-6 Police Station1873/2005341,323,384,506(ii) r/w 34 IPCPT10.H-6 Police Station845/2006397 IPCPT11.H-6 Police Station577/2007341,323,385,506(ii) IPCPT2.UNDER INVESTICATION CASES;7 Sl.NoPolice StationCr.No. Under Section1.H-6,Police Station1189/20028(c)r/w 20(b), NDPS Act 2.H-6,Police Station751/2006294(b) 324 IPC3.H-6,Police Station844/2006147,148,336,427,307,506(ii) IPC4.M-3,Police Station268/2008147,148,341,324,506(ii) IPC5.H-3,Police Station37/2008341,323,506(ii) IPC6.H-6,Police Station377/2008341,323,324,506(ii) IPC7.H-6,Police Station379/2008341,332,336,427,307,506(ii)IPC3.ACQUITTED CASES: 10 Sl.NoPolice StationCr.No. Under Section1.H-6, PoliceStation86/2000341,324,506(ii) IPC2.H-6, PoliceStation1012/2000324,323, r/w 34 IPC https://hcservices.ecourts.gov.in/hcservices/ Sl.NoPolice StationCr.No. Under Section3.H-6, PoliceStation401/2001147,148,324,506(ii) IPC4.H-6, PoliceStation1004/2001147,148,307, 506(ii) IPC5.F-1, PoliceStation845/2002341,324 IPC 6.H-6, PoliceStation808/2002392,307 IPC7.H-6, PoliceStation1079/2002341,324,307,506(ii) IPC 8.H-6,Police Station1183/2002341,336,427,392,307,506(ii) IPC9.H-6,Police Station691/2004336,427,448,392,307 & 506(ii)IPC10.H-6,Police Station957/2004336.427,392,307 & 506(ii) IPCFour non-bailable warrants are pending against the said person in thecases concerned in H-6, Dr.Radhakrishnan Nagar Police Station Viz., Sl.NoPolice StationCr.No. Under Section1.H-6,Police Station1018/2001 353, 336, 506(ii) IPC.2.H-6,Police Station552/2005341,384,506(ii) IPC3.H-6,Police Station1873/2005341,323,384,506(ii) IPC 4.H-6,Police Station577/2007341,323,385,506(ii) IPCHence, the first respondent police are in search of the accused. On20.06.2008, when the police personnel attached to the firstrespondent Police Station, on information tried to apprehend theaccused in Crime No.377 of 2008, he attacked the police party andmanaged to avoid his arrest.3. The said Suresh @ Baba Suresh moved an Anticipatory Bail inCrl.M.P.No.6374 of 2008, in connection with the said Crime No.377 of2008 and the same was rejected by the learned Principal SessionsJudge, Chennai on 01.07.2008. Hence, the said Suresh @ Baba Sureshsurrendered before the Judicial Magistrate, Ponneri on 02.07.2008 andthe learned Judicial Magistrate, Ponneri remanded him to the JudicialCustody. On receipt of such information, the first respondent policehas filed a petition for production of the accused in order to obtainpolice custody on 08.07.2008. The learned XVth MetropolitanMagistrate granted three days police custody from 09.07.2008 to11.07.2008. Accordingly, the first respondent police took thecustody of the said Suresh @ Baba Suresh on 09.07.2008 at 4.45 hours.At the time of production of the said person, he alleged that he wassuffering from ailments and requested for treatment and the same wasduly recorded by the learned Magistrate. Since, the said Suresh @Baba Suresh requested for treatment, he was produced before theCausality Medical Officer, Government General Hospital. At thattime, the hand-cuffs of the said Suresh @ Baba Suresh was removed to https://hcservices.ecourts.gov.in/hcservices/ enable the Doctor to treat him. Taking advantage of the same, thesaid Suresh @ Baba Suresh in a fraction of second, escaped from thecustody of the police. 4. In connection with the said incident, a complaint was lodgedbefore the Government Hospital Police Station and a case was alsoregistered in Crime No.19 of 2008 for the offence under Section 224of IPC. To secure the said Suresh @ Baba Suresh, three police teamswere formed and they were deputed to search the concerned person andalso Departmental action was initiated against Grade-I, PoliceConstables 15684, Thiru.Tamil Mani and 13931 Thiru. Sankaravadivel,who were responsible for the escape of the prisoner. The fact thatthe said prisoner escaped from police custody was informed to thepetitioner herein and the respondents also enquired the petitioner inorder to secure the prisoner.5. During search operation conducted by the first respondentpolice, on information in wee hours of 11.07.2008 at about 01.17 a.m.i.e., on Friday, while trying to secure the prisoner who was hidingnear old warf area within N-4, Fishing Harbour Police Stationlimits, at 2.15 a.m. when the police party was able to identify theprisoner and when the police tried to nab him, the prisoner threw acountry made bomb on the police. However, it fell on the jeep and itburst into flames. Even after warning against the prisoner, he triedto attack the police personnel by throwing another powerful countrymade bomb, which fell on the police jeep and it exploded. When thefirst respondent warned the prisoner to surrender, the prisoner tooka pistol and tried to shoot at the respondent police and as a lastresort, the first respondent used the pistol and shot the accused onhis leg and again, when the prisoner tried to shoot the firstrespondent with a country made gun, the first respondent had no otheroption except to shoot the prisoner in self defence in order to savehimself and other police officers. Due to the injuries suffered, theprisoner was declared dead by the Stanley Medical HospitalAuthorities.6. When the above said petition was heard by the earlier Bench ofthis court on 11.07.2008 in the Lunch Session, the above said factswere informed to the Court and the learned counsel appearing for thepetitioner expressed that he wanted to file two M.Ps. viz., M.P.Nos.1& 2 of 2008. i) M.P.No.1 of 2008 has been filed praying for JudicialEnquiry by a Sessions Judge. ii) M.P.No.2 of 2008 has been filedpraying for suitable compensation for the family members of Suresh @Baba Suresh.7. We have heard the arguments of the learned counsel on eitherside. 8. The learned counsel appearing for the petitioner would submitthat the prisoner was killed by the first respondent in the name ofencounter, which amounts to custodial death, for which the familymembers of the prisoner is entitled for compensation. 9. The learned counsel appearing for the petitioner furthersubmitted that taking into consideration the serious allegations made https://hcservices.ecourts.gov.in/hcservices/ by the petitioner, a judicial enquiry by a District Judge should beordered. 10. The learned Additional Public Prosecutor filed a detailedcounter affidavit and argued that it is not in dispute that theprisoner was killed during encounter. At the same time it cannot betermed as a custodial death. Since, the prisoner escaped from thepolice custody at the time of encounter, he was not under the custodyof the police which fact can be substantiated by the fact that a casewas registered regarding the same. 11. The learned Additional Public Prosecutor further submittedthat there is no need to give compensation as requested by thepetitioner, since it is not a custodial death. The learnedAdditional Public Prosecutor further adds that there is no necessityfor Judicial enquiry, since already an enquiry was ordered by theGovernment as contemplated under the Police Standing Orders. TheDistrict Revenue Officer/Additional District Magistrate, ChennaiDistrict, conducted an enquiry, in which the petitioner was alsoexamined. The Enquiry Officer also submitted his report on26.08.2008. On the basis of the same, the Government has passed anorder dated 27.01.2009, dropping further action against the policeofficials concerned.12. We have also perused the records produced by both parties. Asfar as the production of the prisoner as prayed for in H.C.P.No.994of 2008 is concerned, the fact that the prisoner was killed in anencounter, and the same has been informed to this Court on 11.07.2008itself and nothing survives for consideration by this Court.13. The question of compensation would arise only when there isan excess of police power, that too more particularly while a personwas in the custody of police and the death is in a suspiciouscircumstances, for which the police is not in a position to explainthe cause of death. Whereas in this case, the definite stand taken bythe respondent police is that the prisoner was done to death while heattacked the respondent police with a country made bomb and pistol.The petitioner has also not substantiated that the death was insuspicious circumstances. The stand taken by the respondent policeclearly reveal that the respondent acted in order to save their lifeand the action is also by way of self defence by the respondentPolice. Hence, it is not necessary for this Court to pass an order ofcompensation to the family of the prisoner. 14. As far as the question of Judicial enquiry is concerned, itis evident from the records that a competent authority ascontemplated under the Police Standing Orders has conducted a fullfledged enquiry. During the enquiry the officer has relied on variousmaterials produced by the parties and after receipt of affidavitsfrom the persons, acquainted with the facts and circumstances of theincident, decided the issue. The Government has also accepted thesaid report and dropped further action. The procedure through whichthe allegations against the Police Officials are to be enquired into,the said procedures were duly followed in this case, there is no needfor ordering judicial enquiry in this case. When the petitioner isnot alleging any malafides on the part of the enquiry officer, either https://hcservices.ecourts.gov.in/hcservices/ in the affidavit or during the arguments, there is no justificationfor ordering judicial enquiry in this case. 15. In the result, the Habeas Corpus Petition is dismissed.Consequently, connected M.Ps.are also dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar rrgTo:1.The Inspector of Police, H-6,Dr.Radhakrishnan Nagar Police Station, Chennai-600 021,2.The Commissioner of Police, Chennai City, Egmore, Chennai. 3.The Public Prosecutor High Court, Madras.1 cc To Mr.S.Swamidoss Manokaran, Advocate, SR.34104 HCP No.994 of 2008GV(CO)SRA(10/08/2009)